(Yeah, I'm saying "5 man majority," not "5 person majority." Justice Ginsburg was in the dissent. I'm going to say "man" for whatever group Ginsburg isn't in. It's a solid, concrete word -- "man," unlike "person" -- so I like it from a plain English perspective, but I think it's good to highlight the gender disproportion on the Court.)

.... Should we call Alito the "deciding vote"? It seems more appropriate to think of Kennedy as the deciding vote, that is, the man among the 5 most likely to have voted with the dissenting group. But Alito replaced O'Connor, and O'Connor might well have voted with the dissenters. In that sense, we may perceive him as the deciding vote. As Marty Lederman writes:

[The case was] originally argued in the [October] sitting and then reargued after Justice Alito joined the Court. ... As I predicted here, Justice Souter -- who likely was assigned to write the majority before Justice O'Connor's retirement -- wrote a dissent, joined by Justices Stevens and Ginsburg.

As to the substance of the decision, Lederman explains some of the complexities of what he calls "a very significant doctrinal development" in the case:

[I]t appears that if one's duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick analysis still applies. A somewhat odd result, at least on first glance. And odder still: Under today's opinion, if Mr. Ceballos had written a newspaper article complaining about the wrongdoing in question, rather than taking the matter to his supervisor, he would at least be entitled to whatever constitutiional [sic] protection Pickering/Connick offers. Does today's decision therefore give employees an incentive to go outside the established channels -- to take their concerns to the newspapers, instead of up the established chain to their supervisors?

Is that a perverse incentive? Why might it make sense? Justice Kennedy writes:

Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission. Ceballos’ memo is illustrative. It demanded the attention of his supervisors and led to a heated meeting with employees from the sheriff’s department. If Ceballos’ superiors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action.

Ceballos’ proposed contrary rule, adopted by the Court of Appeals, would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This displacement of managerial discretion by judicial supervision finds no support in our precedents. When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny. To hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.

10 comments:

Perhaps, but it's hard to argue that a memorandum written to one's superiors is not done in carrying out one's duties. I think the majority's constitutional analysis is right and that the states and feds can give a whistleblower's privilege by statute if they think it's appropriate.

CHEBOKSARY, Russia — Albert Imendayev collected the signatures he needed to run for the legislature last fall in this city on the banks of the Volga River. He met with supporters, prepared his campaign material. He would have made the ballot had it not been for one thing: He was hauled off to a mental asylum.

Only days before he was required to appear at the local election commission to finalize his candidacy, an investigator from the prosecutor's office met Imendayev at the courthouse with three police officers. They kept him locked up until a judge could be found to sign the order committing him for a psychiatric evaluation...."The hearing took place, and I was taken straight off to the asylum," said the businessman and human rights activist. By the time he was released nine days later, the election filing deadline had passed and he was out of the race.

It was interesting that Breyer declined to join Souter's dissenting opinion because Breyer concluded that Souter's standard was insufficiently protective of the need for managerial discretion for reasons of efficiency in management and administration by governmental employers. While that was the fault line that got the most attention, equally resonant, at least for me, was Justice Kennedy's concern about the need to keep the judicial role within reasonable parameters. If the Ninth Circuit's opinion had been affirmed, public employers would undoubtedly have tailored their actions to the inevitability of judicial second-guessing of all manner of decisions taken by public employers. The Court was wise to reject that approach.

Public employers are already in a far more difficult position than private employers whenever the governmental employer contemplates adverse action against any employee. You could see some of that even in this case, where the DA's office went out of its way to deny implausibly that it had taken adverse action against Ceballos -- a point on which Ceballos was quite likely to more reliable.

I suspect that an unstated premise of the Court's opinion was that union rules (remember that government employment is the only significant area of success that union organizers have enjoyed in quite a long time) combined with due process requirements already impose significant costs, in terms of management's time and resources, whenever management of a governmental employer is contemplating taking such adverse employment actions. Whenever the costs of an activity increase, it is a pretty good bet that those costs act as a disincentive to engage in it. The result is that management becomes more difficult, problem employees are allowed to remain, and the general efficiency and often the overall morale of the rest of the workforce is adversely impacted. Efficiency is the inevitable loser -- and, if you have any doubts, a visit to your local post office or DMV bureau where the impact of this ossified system on employee conduct should put them to rest. In comparison, in the private section, particularly the non-unionized sector, management has a much freer hand, and uses it to nip such problems in the bud, by getting rid of problem employees much sooner.

No doubt, on occasion, the real "problem" is not about the employee at all, and mistakes (or worse) are sometimes made. But the costs of adding layers of judicial second-guessing on top of all of that, by constitutionalizing the employment relationship when the government is the employer, must have struck the Court as just too much. And a second unstated but I think real factor here was the Court's strong desire not to saddle the federal judiciary with such a thankless task, where the courts are already struggling under a heavy case load of Title VII complaints. As to the already existing caseload of employment cases, I think the folk wisdom among judges is that most of them suffer from the twin defects of being both bogus and impossible to settle. No big surprise that the Court's majority was not willing to add a new constitutional cause of action that would just have made that problem bigger.

When I first met my husband, the Soviet camp survivor, he was quite an outsider to an American culture that was drenched in therapy at the time (early '70s). He used to make fun of people he knew who were in group therapy, where they learned to say things like, "I'm a person. I have feelings." He told me that the word "person" originally meant "mask"! I looked it up and damned if he wasn't right. In Greek drama, the actors wore masks that had a sort of amplifying megaphone built in. They were called "per sona," "for sound."

One aspect that to me the case hinges on is if he was required to send the memo to the defense. My understanding is that he did not get demoted because he did the investigation, wrote the memo, argued the merits of his memo to his boss, met with his boss and the sheriff to argue the merits or was called to testify. Where he got in trouble was in sending the memo to the defense counsel because he "believed" that he had a prosecutorial requirement to do so.

My gut says the memo was work product, not evidence. He would clearly have a duty to send evidence to prevent surprise, but I have never heard of a requirement that the prosecutor send his analysis of evidence, the law, etc. to the defense (other than formally filed motions and responses).

The question of whether a lie was incorporated into the warrant was apparently arguable enough that reasonable men (the attorney, his boss, the sheriff) could look at the same set of facts and disagree. Unless you can show they were totally wrong to go forward, then this should be one of those cases where you go to bat for an idea and lose.

If he was required to send the memo, then you would still have the question about the advisability of creating the memo (never commit anything to email or paper you don't want to see in court).